I have lived at the same location on a Chesapeake Bay tributary for more than forty years. During that time, I have observed countless – and now new generations of – elected officials expressing their understanding of and committing (supposedly) their best efforts to “clean up” the Bay.
Unfortunately, the sad reality – and the reason why my enthusiastic optimism of the past has now faded to a cynical pessimism – is that many of those political assertions have just been vacuous words of those with an ambition for votes.
That is because the condition of the Bay today has not improved over the past four decades because of the lack of leadership and political will for our generation of the stewardship of the Chesapeake Bay.
If you do not share my skepticism, and now distrust, please read the anecdotal and true story below – even more troubling, and perhaps motivating, than its sad tale for one family is the tragedy it tells for all of us who live in the Chesapeake Bay region.
The Lake Bonnie Story
Goldsboro is a small town of about 400 homes located at the headwaters of the Choptank River – one of the Chesapeake Bay’s most magnificent tributaries. Unfortunately, Goldsboro did not – and still does not – have a municipal sewer system.
For many years, the Choptank River has been classified as an “impaired waterway” under the Clean Water Act. That means that it does not meet the State water quality standards, even after point sources of pollution have been installed with the minimum required levels of pollution control technology. The local river keeper organization gives the Choptank a consistently C-/D+ grade. . . . read on and you will find out why the Choptank River is thoroughly polluted.
The problem was – and still is – that there are many shallow and failing septic systems in Goldsboro. Therefore, for more than 30 years – and still today – untreated sewerage waste water, thoroughly contaminated with human fecal coliform, has been and continues to be discharged directly from Goldsboro into the Choptank River, and then into the Bay.
Before the polluted waters from Goldsboro reach the Choptank River, they flow through “Lake Bonnie”, a 28 acre private lake on a 140 acre property which used to be owned by Gail Litz.
In 1996, the State of Maryland – through its Department of the Environment – executed a “Consent Order” with the Town of Goldsboro to require the town to take specific and substantive actions to eliminate pollution it was allowing to flow into Lake Bonnie and then the Choptank River. [A consent order is an agreement between an administrative authority and another party under its jurisdiction. It generally has the same effect as a court order and can be enforced by a court.]
For many years starting in the 1950’s, Ms. Litz and her family operated a campsite on Lake Bonnie. The economic vitality of the campground was gradually destroyed by the State’s failure to enforce the Consent Order. In the 2000’s the campsite was closed by the local health department because it was polluted by the constant sewerage discharge from Goldsboro. Two years ago, Ms. Litz lost her property to a bank foreclosure. (The foreclosing bank had valued Ms. Litz’s property at more than $1.4 million.)
I was retained by Ms. Litz several years ago to assist her in recovering the devastating damages she incurred as a result of the State’s gross negligence and malfeasance in its failure and refusal to require compliance with the Consent Order. The first question I then asked her was the most obvious one – “Ms. Litz, why didn’t you complain sooner about the State’s non-enforcement of the Consent Order”.
Her answer was stark and profound in its candor and honesty – “I thought that the State would do what it said it would do, and I did not want to cause problems”. In other words, Ms. Litz was – and is – the type of patient, non-litigious and respectful citizen – trusting of our elected officials – to which we should all aspire to be.
The subject of this commentary is the State’s gross negligence and malfeasance in failing to honor and require compliance with the Consent Order. That is, for the past 16 years, the State has ignored the Consent Order and caused irreparable harm to the Chesapeake Bay and the Litz family. That failure makes a mockery of the many and frequent platitudes of our elected officials.
The State of Maryland & The Consent Order Today
The Consent Order states – again, this was 16 years ago in 1996 – that “numerous private septic systems in and around Goldsboro are or could be prejudicial to health or on the environment by discharging pollutants to surface or ground water to the State”, that “(A)ll septic systems in Goldsboro penetrate the groundwater”, and that “(M)any septic systems have never had permitted work performed on them since initial installation”. In other words, an environmental disaster . . .
The Consent Order also reported an almost unbelievably primitive and egregious situation – “The Caroline County Health Department has advised MDE that there are areas in Goldsboro where systems have failed and wastewater is being discharged through pipes to drainage ditches or is being deposited into drainage ditches by the dumping of buckets”.
Ms. Litz was not a signatory “party” to the Consent Order – it was between MDE and the town – but she was a third party beneficiary with a unique status. That is because at that time, the State obviously felt – rightly so – that it had a duty to Ms. Litz. By a June 12, 1996 letter to Ms. Litz, it advised her that the discharge of polluted waters from Goldsboro “continue to be a health threat for water contact recreation in the lake . . . the town has been notified that they have to eliminate all discharge”.
The subsequent Consent Order required numerous specific actions including a mandate for Goldsboro to provide a public sewage disposal system, a “Compliance Plan”, written progress reports, and $100/day penalties to MDE’s “Clearwater Fund” (which if imposed, would today total $430,000+). But none of that was ever done because the State never followed up and assured that the town complied with the order.
The tragedy – and the reason for my skepticism that the public officials of Maryland will ever really do the right thing for the Bay – is that the Consent Order was altogether ignored and forgotten. When I first contacted MDE in 2010 to ask for a copy of the Consent Order, officials could not even find it – because it was in MDE’s closed files!
After the Consent Order was located several weeks later, I contacted three of the highest elected State officials with a direct plea for their involvement and assistance. Frankly, because of their election year pledges to “clean up the Bay”, I thought that they would welcome the information I provided to them. Unfortunately, their chorus to my overture in response was unanimous – let the lawyers and the courts handle it.
Because the State has been unwilling to take any action to enforce the Consent Order –even after it was reminded about it – suit was filed in the Caroline County Circuit Court.
Among several counts for judicial relief, Ms. Litz’s lawsuit alleges that she is entitled to damages caused by the “inverse condemnation” of her property. [Inverse condemnation is a situation where the action or inaction of a governmental authority causes an owner to incur specific damages to his/her property even without a formal condemnation action being initiated.]
In this case, Ms. Litz’s property was effectively condemned by virtue of the State’s failure to enforce the Consent Order.
Rather than interview Ms. Litz about her concerns, the MDE assistant attorney general filed a motion to dismiss the lawsuit so that Ms. Litz would never have her day in court – and so that MDE would never have to enforce the Consent Order.
In other words, rather than to take public responsibility and initiative to enter into negotiations to solve the problems it caused for Ms. Litz and the Bay, MDE instructed its lawyers to vigorously defend its negligence and malfeasance in not enforcing the Consent Order – and to blame Ms. Litz for its failure to do so. The motion to dismiss asserted that Ms. Litz had “waited too long” to complain about the State’s inaction, even though she patiently assumed that actions were being taken.
The Circuit Court determination that Ms. Litz’s claim is barred by a three year statute of limitations was recently ratified by the Court of Special Appeals which held that the “State of Maryland has no-ongoing contractual or other obligation to prevent contamination from entering or damaging the Litz Property”.
That is a startling and cynical conclusion, and not even one asserted by the MDE lawyers. Why isn’t the 1996 Consent Order a “contractual obligation” of the State?
The tragic but very real result of the statute of limitations ruling is that the “wrong” – that is, the State’s failure to enforce the Consent Order – is on-going, so that the waste water pollution flowing from Goldsboro into the Choptank River continues unabated. In other words, the status quo is that the Consent Order is without meaning or effect – both politically and judicially.
Perhaps Ms. Litz’s experience can be appreciated by an analogy. That is, suppose there is a prison located in an area which is experiencing a number of inmate breakouts into the local neighborhood. It is reasonable to assume that the State and the agency responsible for prison security would execute a consent order requiring specific remedies for the problem. In such a situation, would the neighborhood residents not have the right to expect that the State would assure compliance with the consent order without they – the citizens – having to file an enforcement action in court?
Because of the lack of leadership and a meaningful commitment to the Bay by Maryland’s top elected officials, the failing septic systems in Goldsboro continue to pollute – in essence, a gigantic toilet with direct and constant discharge of contaminated waters directly into the Choptank River. (Think about hypocrisy of MDE in trying to enforce environmental regulations against private interests while using the judicial system to avoid its own responsibilities in this situation.)
There is one last chance for judicial review of Ms. Litz’s case by the Maryland Court of Appeals – Maryland’s highest court with its most distinguished jurists – and it will be pursued, although it is probably a long shot.
In the meantime, all of us who care about the health of the Chesapeake Bay and wonder why it is so compromised, should ask ourselves the question – How can it be that our State government is so ineffective when the platitudes of our elected officials are so many?
Is It Too Late? Maybe . . . but perhaps not.
If our generation of State officials want to step up to the plate and honor their commitments to the Bay, they could do two things . . .now!
First, they should order MDE and its attorneys to vigorously enforce the Consent Order and discontinue their efforts to avoid responsibility for the State’s commitments. Second, they should address and compensate Ms. Litz for the damages that she has suffered as a result of the State’s gross negligence and malfeasance.
In the meantime, it may be that the Court of Appeals will agree to hear the case so that Ms. Litz will have her day in court, in which case the best interests of the Bay will be served.
Notwithstanding the egregious and devious strategy of MDE and its attorneys, the real responsibility for this tragedy lies with our elected officials – yes, those same ones who always campaign on how they will “clean up the Bay”.
Lyndon Johnson once said that – It is the price of leadership to do the thing you believe has to be done at the time it must be done.
That time is now for our elected officials in Annapolis.
Mr. Hoon lives and practices land use law in Chestertown. www.hoonassoc.com – [email protected].
Write a Letter to the Editor on this Article
We encourage readers to offer their point of view on this article by submitting the following form. Editing is sometimes necessary and is done at the discretion of the editorial staff.